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Federal Act on the Amendment of the Swiss Civil Code (Part Five: the Code of Obligations) of 30 March 1911 (Status As of 1 July 2014)

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Federal Act on the Amendment of the Swiss Civil Code (Part Five: the Code of Obligations) of 30 March 1911 (Status As of 1 July 2014) 220 English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force. Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations) of 30 March 1911 (Status as of 1 July 2014) The Federal Assembly of the Swiss Confederation, having considered the Dispatches of the Federal Council dated 3 March 1905 and 1 June 19091 decrees: Code of Obligations Division One: General Provisions Title One: Creation of Obligations Section One: Obligations arising by Contract Art. 1 A. Conclusion of 1 The conclusion of a contract requires a mutual expression of intent the contract I. Mutual by the parties. expression of 2 intent The expression of intent may be express or implied. 1. In general Art. 2 2. Secondary 1 Where the parties have agreed on all the essential terms, it is pre- terms sumed that the contract will be binding notwithstanding any reserva- tion on secondary terms. 2 In the event of failure to reach agreement on such secondary terms, the court must determine them with due regard to the nature of the transaction. 3 The foregoing is subject to the provisions governing the form of contracts. AS 27 317 and BS 2 199 1 BBl 1905 II 1, 1909 III 747, 1911 I 695 1 220 Code of Obligations Art. 3 II. Offer and 1 A person who offers to enter into a contract with another person and acceptance 1. Offer subject sets a time limit for acceptance is bound by his offer until the time to time limit limit expires. 2 He is no longer bound if no acceptance has reached him on expiry of the time limit. Art. 4 2. Offer without 1 Where an offer is made in the offeree’s presence and no time limit time limit a. In the parties’ for acceptance is set, it is no longer binding on the offeror unless the presence offeree accepts it immediately. 2 Contracts concluded by telephone are deemed to have been con- cluded in the parties’ presence where they or their agents communi- cated in person. Art. 5 b. In the parties’ 1 Where an offer is made in the offeree’s absence and no time limit for absence acceptance is set, it remains binding on the offeror until such time as he might expect a reply sent duly and promptly to reach him. 2 He may assume that his offer has been promptly received. 3 Where an acceptance sent duly and promptly is late in reaching the offeror and he does not wish to be bound by his offer, he must imme- diately inform the offeree. Art. 6 3. Implied Where the particular nature of the transaction or the circumstances are acceptance such that express acceptance cannot reasonably be expected, the con- tract is deemed to have been concluded if the offer is not rejected within a reasonable time. Art. 6a2 3a. Unsolicited 1 The sending of unsolicited goods does not constitute an offer. goods 2 The recipient is not obliged to return or keep such goods. 3 Where unsolicited goods have obviously been sent in error, the recipient must inform the sender. 2 Inserted by No I of the Federal Act of 5 Oct. 1990, in force since 1 July 1991 (AS 1991 846 848; BBl 1986 II 360). 2 Federal Act on the Amendment of the Swiss Civil Code 220 Art. 7 4. Non-binding 1 An offeror is not bound by his offer if he has made express declara- offer, an- nouncement of tion to that effect or such a reservation arises from the circumstances prices, display or from the particular nature of the transaction. 2 The sending of tariffs, price lists and the like does not constitute an offer. 3 By contrast, the display of merchandise with an indication of its price does generally constitute an offer. Art. 8 5. Publicly 1 A person who publicly promises remuneration or a reward in ex- promised remuneration change for the performance of an act must pay in accordance with his promise. 2 If he withdraws his promise before performance has been made, he must reimburse any person incurring expenditure in good faith on account of the promise up to the maximum amount promised unless he can prove that such person could not have provided the performance in question. Art. 9 6. Withdrawal of 1 An offer is deemed not to have been made if its withdrawal reaches offer and acceptance the offeree before or at the same time as the offer itself or, where it arrives subsequently, if it is communicated to the offeree before he becomes aware of the offer. 2 The same applies to a withdrawal of an acceptance. Art. 10 III. Entry into 1 A contract concluded in the parties’ absence takes effect from the effect of a contract time acceptance is sent. concluded in the parties’ absence 2 Where express acceptance is not required, the contract takes effect from the time the offer is received. Art. 11 B. Form of 1 The validity of a contract is not subject to compliance with any contracts I. Formal particular form unless a particular form is prescribed by law. requirements and 2 significance in In the absence of any provision to the contrary on the significance general and effect of formal requirements prescribed by law, the contract is valid only if such requirements are satisfied. 3 220 Code of Obligations Art. 12 II. Written form Where the law requires that a contract be done in writing, that provi- 1. Form required by law sion also applies to any amendment to the contract with the exception a. Scope of supplementary collateral clauses that do not conflict with the origi- nal document. Art. 13 b. Effect 1 A contract required by law to be in writing must be signed by all persons on whom it imposes obligations. 2 ...3 Art. 14 c. Signature 1 Signatures must be appended by hand by the parties to the contract. 2 A signature reproduced by mechanical means is recognised as suffi- cient only where such reproduction is customarily permitted, and in particular in the case of signatures on large numbers of issued securi- ties. 2bis An authenticated electronic signature based on an authenticated certificate issued by a provider of certification services within the meaning of the Federal Act of 19 December 2003 on Electronic Signa- tures4 is deemed equivalent to a handwritten signature, subject to any statutory or contractual provision to the contrary.5 3 The signature of a blind person is binding only if it has been duly certified or if it is proved that he was aware of the terms of the docu- ment at the time of signing. Art. 15 d. Mark Subject to the provisions relating to bills of exchange, any person in lieu of signature unable to sign may make a duly certified mark by hand or give a certified declaration in lieu of a signature. Art. 16 2. Form stipu- 1 Where the parties agree to make a contract subject to formal re- lated by contract quirements not prescribed by law, it is presumed that the parties do not wish to assume obligations until such time as those requirements are satisfied. 3 Repealed by Annex No 2 to the Federal Act of 19 Dec. 2003 on Electronic Signatures, with effect from 1 Jan. 2005 (SR 943.03). 4 SR 943.03 5 Inserted by Annex No 2 to the Federal Act of 19 Dec. 2003 on Electronic Signatures, in force since 1 Jan. 2005 (SR 943.03). 4 Federal Act on the Amendment of the Swiss Civil Code 220 2 Where the parties stipulate a written form without elaborating fur- ther, the provisions governing the written form as required by law apply to satisfaction of that requirement. Art. 17 C. Cause of An acknowledgment of debt is valid even if it does not state the cause obligation of the obligation. Art. 18 D. Interpretation 1 When assessing the form and terms of a contract, the true and com- of contracts, simulation mon intention of the parties must be ascertained without dwelling on any inexact expressions or designations they may have used either in error or by way of disguising the true nature of the agreement. 2 A debtor may not plead simulation as a defence against a third party who has become his creditor in reliance on a written acknowledgment of debt. Art. 19 E. Terms of the 1 The terms of a contract may be freely determined within the limits of contract I. Definition of the law. terms 2 Clauses that deviate from those prescribed by law are admissible only where the law does not prescribe mandatory forms of wording or where deviation from the legally prescribed terms would contravene public policy, morality or rights of personal privacy. Art. 20 II. Nullity 1 A contract is void if its terms are impossible, unlawful or immoral. 2 However, where the defect pertains only to certain terms of a con- tract, those terms alone are void unless there is cause to assume that the contract would not have been concluded without them. Art. 21 III. Unfair 1 Where there is a clear discrepancy between performance and consid- advantage eration under a contract concluded as a result of one party’s exploita- tion of the other’s straitened circumstances, inexperience or thought- lessness, the injured party may declare within one year that he will not honour the contract and demand restitution of any performance already made.
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